§2050.4.  Enforcement; adjudicatory hearing; public comment

A.  The respondent has the right to an adjudicatory hearing on a disputed issue of material fact or of law arising from a compliance order or a penalty assessment.  This right may be exercised by filing a written request with the secretary.

B.  An aggrieved person other than the respondent, may request in writing an adjudicatory hearing on a disputed issue of material fact or of law arising from the compliance order or penalty assessment.  The secretary may grant the request when equity and justice require it.

C.  When the request for an adjudicatory hearing raises an issue of law only, the secretary may limit the parties to the presentation of oral or written arguments.  When the request for an adjudicatory hearing raises an issue of material fact, the scope of the hearing may be limited to the disputed issue of material fact.

D.  A request for an adjudicatory hearing shall specify the provisions of the order or assessment on which the hearing is requested and shall briefly describe the basis for the request.  The secretary may require the aggrieved person to supplement the specification or description.

E.  A request for an adjudicatory hearing must be filed within thirty days after notice to the respondent of the compliance order or penalty assessment.  Within thirty days after the filing of the request, the secretary shall notify the person requesting an adjudicatory hearing that the request has been granted or denied unless  the secretary and the applicant have mutually agreed to enter into dispute resolution discussions in accordance with Subsection J of this Section.

F.  The secretary may grant an untimely request for an adjudicatory hearing when the secretary determines that the untimeliness results from excusable neglect.  The decision of the secretary to grant or to deny an untimely request is not subject to judicial review.

G.(1)  If the secretary grants the hearing within the time provided for in Subsection E, the matter shall proceed pursuant to the applicable rules of the department and the Administrative Procedure Act.

(2)  If the secretary denies the hearing within the time provided for in Subsection E, an applicant appealing the decision of the secretary  shall, within thirty days from the date of notice of the denial, file an application for de novo review of the secretary's denial in the Nineteenth Judicial District Court for the parish of East Baton Rouge.

(3)  If within the time provided for in Subsection E, the secretary has not granted or denied the hearing, or if the secretary and the applicant have not mutually agreed, in writing, to engage in dispute resolution discussions, then this inaction by the secretary shall be deemed to be a denial of the applicant's request for hearing and the applicant seeking de novo review of the secretary's decision shall, within thirty days after the expiration of the time period provided in Subsection E, file an application for de novo review of the secretary's denial in the Nineteenth Judicial District Court for the parish of East Baton Rouge.

H.(1)  When a request for an adjudicatory hearing relates only to a provision of the compliance order or the penalty assessment, the secretary may order compliance or may assess a penalty as to those provisions on which a hearing is not requested.

(2)  An action by the secretary under this Subsection is a final enforcement action.

I.  Prior to the adjudicatory hearing, written public comments regarding the proposed compliance order or penalty assessment may be filed with the assistant secretary for the office of environmental compliance.  The assistant secretary shall make the public comments available to the parties to the adjudicatory hearing.

J.(1)  If the secretary and the applicant mutually agree to enter into dispute resolution discussions, they shall execute a written agreement prior to the expiration of the time provided for in Subsection E.  The secretary and the applicant shall mutually select, or may extend, the expiration date for conducting the dispute resolution discussions, provided however that the time period does not exceed one year from the date the parties first execute a written agreement.

(2)  All disputes that are resolved shall be reduced to writing.  Either party may withdraw from the resolution process by sending a written notice of withdrawal, certified mail, return receipt requested, to the other party.  If the dispute is not resolved within the time period agreed upon, within the one-year maximum, or by the date of the withdrawal of either party, the secretary shall, within thirty days, notify the person requesting an adjudicatory hearing that the request has been granted or denied.

Acts 1995, No. 947, §1, eff. Jan. 1, 1996; Acts 1999, No. 303, §1, eff. June 14, 1999; Acts 2001, No. 1197, §1.